#### John DONALDSON, Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Appellee.

No. 10-1364-cv.

United States Court of Appeals, Second Circuit.

Sept. 30, 2011.

John Gerard Bliss, Law Firm of Jack Bliss (John Donaldson, on the brief), White Plains, NY, pro se.

Michael A. Cardozo, Corporation Counsel of the City of New York (Kristin M. Helmers and Janet L. Zaleon, of Counsel), for Appellee.

PRESENT: PIERRE N. LEVAL, PETER W. HALL and RAYMOND J. LOHIER, JR., Circuit Judges.

SUMMARY ORDER

John Donaldson appeals from the dismissal of his complaint alleging breach of contract under Rule 12(b)(1) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the facts and procedural history. We note that Donaldson appeared *pro se*in the district court proceedings and on the briefs on appeal. He has since obtained counsel.

*602We review *de novo*a district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. *Triestman v. Fed. Bureau of Prisons,*470 F.3d 471, 474 (2d Cir.2006). Although we liberally construe Donaldson’s *pro se*complaint, *Triestman,*470 F.3d at 474, the complaint must contain sufficient factual matter “ ‘to state a claim to relief that is plausible on its face.’ ” *Ashcroft v. Iqbal,*556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting *Bell Atl. Corp. v. Twombly,*550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Donaldson argues that the district court ought to have construed his claim that the New York City Department of Education breached the settlement agreement as one arising under 42 U.S.C. § 1983. He maintains that the facts of the complaint made clear that: the Department was acting “under the color of law” in reaching and breaching the settlement agreement; the Department’s actions prevented him from obtaining other employment as a teacher and therefore deprived him (and continue to deprive him) of his liberty and property rights in employment; because he was forced into early retirement he has lost income; the Department deprived him of a hearing with respect to the charges filed against him of insubordination and causing a student riot; and the charge of insubordination was brought in retaliation for his union activities. He also contends that to the extent the student riot was attributable to him the students were exercising their First Amendment rights, and thus he should not have been punished.

We need not reach whether the Department’s actions might form the basis of a cognizable section 1983 action because such a claim would be untimely. Donaldson’s complaint, filed on June 23, 2009, alleges that the June 28, 2004 “unsatisfactory” performance review has prevented him from obtaining another teaching position and that he was deprived of a hearing with respect to the 2003 allegations of insubordination and inciting a student protest. His complaint falls well outside the three-year statute of limitations for section 1983 claims brought in New York. *Patterson v. County of Oneida,*375 F.3d 206, 225 (2d Cir.2004).

I. Conclusion

Accordingly, the district court properly dismissed the complaint.

For the foregoing reasons, the judgment of the district court is AFFIRMED.